Sexual harassment house of cards

Another week, another list of public allegations of sexual abuse, sexual assault and sexual harassment against high profile men in the entertainment industry, politics and beyond. The onslaught of allegations, which began in earnest with the allegations against Harvey Weinstein, followed soon after by allegations against what appears to be almost every other man in Hollywood, created a #MeToo movement indicating that it is a rare occurrence for a woman to have not been abused or harassed, with many instances work-related.

Also evident is a new public expectation that employers will actually do something about it, rather than ignore it or pay lip service to it while allowing the behaviour to continue due to the status of the perpetrator. In addition employers are being sued and being held liable for the behaviour of their employees where it appears they were complicit.

All provinces except New Brunswick have specific legislation (in most cases in occupational health and safety legislation) requiring employers to create policies to prevent and deal with workplace violence which includes threats as well as actions. Note that on October 18, 2017, the New Brunswick government announced that it is developing new workplace regulations under the Occupational Health and Safety Act aimed at preventing workplace violence and protecting workers. The government intends to have the regulation in place by April 28, 2018. All provincial human rights legislation also prohibits harassment as protected ground, including sexual harassment. In Prince Edward Island, sexual harassment is prohibited in employment standards legislation as well.

Bill C-65, An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1, introduced on November 7, 2017, by Minister of Employment, Workplace Development of Labour Patty Hajdu, seeks to amend both the Canada Labour Code and the Parliamentary Employment and Staff Relations Act to require employers in federally regulated workplaces and Parliament (such as the Senate, the Library of Parliament and the House of Commons, including political staff on Parliament Hill) to replace the patchwork of laws and policies that address violence and harassment within the federal jurisdiction, putting into place one comprehensive approach that takes the full spectrum of harassment and violence into consideration.

In addition to the requirement to develop and review policies in this regard, employers must protect employees from workplace violence and harassment and investigate incidents and complaints. Most provinces have published useful guides for employers to assist in developing policies and procedures to deal with workplace harassment and sexual harassment.

The difficulty for employers is two-fold: fostering an environment in which sexual harassment will be reported, and taking decisive action against an employee whose conduct is unacceptable, especially a top performer whose loss will affect the bottom line.

How an employer deals with reports of sexual harassment, and that it does, in fact, deal with it, will be the most important factor in encouraging complainants to come forward. Employers must appoint sympathetic and understanding persons who are properly trained to receive and investigate such complaints quickly and impartially. It is also recommended to have a number of persons on such a list to allow an employee to select from someone who may be further removed from the perpetrator.

In the past it may have been the employer’s response to neutralize the complainant (often by termination or demotion), despite the law, however, in the current climate employers will have to act decisively against the perpetrator or face legal liabilities and/or public shaming. No top performer is worth bad publicity or a finding of legal liability, and such behaviour is never a one-off, it is a pattern which will continue. You can’t claim you didn’t know after the first complaint.

Employers should ensure that they have appropriate policies and procedures dealing with Workplace Harassment, Conduct and Behaviour, Discipline, Whistleblowers, Accident Reporting, Accident Investigation and Workplace Violence. Samples of each of these policies are available in the Human Resources PolicyPro. Not a subscriber? Take a free trial here.

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Michele Glassford, is a lawyer, researcher and policy analyst with a background in employment and labour law.In addition to a part-time law practice in Stoney Creek, Ontario, Michele has worked in the field of labour adjustment for the Health Sector Training and Adjustment Program and has been a Researcher for the Canadian Broadcasting Corporation. Michele also holds the position of President and Managing Editor at D.R. Hancocks & Associates Inc., author of the Human Resources PolicyPros. Read more